Teaford v. Howard

707 P.2d 1327, 104 Wash. 2d 580

• Court: Washington Supreme Court
• Decided: October 17, 1985
• Docket: 51111-0, 51112-8, 51113-6
• Status: Published

Opinions

Pearson, J.

These consolidated cases concern recall petitions filed against Medical Lake School District Directors Harry Teaford, Merle Barr and Sharon Morasch. The issue presented is whether the charges propounded in the petitions allege sufficient grounds for recall. The trial court, pursuant to RCW 29.82.023, conducted a hearing to determine the sufficiency of the charges and found that charge 1 against Teaford, Barr and Morasch and charge 3 against Teaford were sufficient. The trial court found the other charges insufficient. We affirm in part and reverse in part by holding that all the charges allege insufficient grounds for recall.

On October 10, 1984, recall charges were filed against Teaford, Barr and Morasch. The charges involved allegations of misfeasance, malfeasance and violations of the oath of office. In charge 1 all three directors were accused of violating the Open Public Meetings Act of 1971 (the Act), RCW 42.30, by holding a secret meeting on June 26, 1984, where there was a discussion and a decision to vote in the negative on an agenda item. Charge 2 alleged identical facts to charge 1 and asserted that, irrespective of any violation of the Act, such conduct constituted misfeasance and malfeasance. Charge 3 against Teaford alleged that on September 10, 1984, at a regular meeting of the Board of Directors of Medical Lake School District, Mr. Teaford broke the confidences of the Board by relating to a citizen the confidential deliberations which had gone into the Board's decision for hiring a superintendent. The charge alleged that such action was contrary to existing board practice and procedure, violated the privacy of persons discussed, and constituted misfeasance or malfeasance. Charge ,3 filed against Barr and Morasch alleged the two directors solicited Medical Lake High School teachers between May 1 and June 10, 1984, requesting support for a 7-period day in the high school. It further stated that said solicitation violated two school board policies, was in circumvention of the Educational Employment Relations Act (RCW 41.59) since it was a matter of collective bargaining and constituted misfeasance. Charge 4 filed against Barr alleged that on April 24, 1984, at a regular school board meeting at Medical Lake High School, before approximately 250 citizens, Barr falsely accused the high school principal of presenting "misinformation, concealed facts and downright lies" and that such action violated school board policy, was unprofessional, and constituted misfeasance and malfeasance.

This case is the most recent in the long list of decisions involving the determination of whether recall charges are sufficient. See Chandler v. Otto, 103 Wn.2d 268, 693 P.2d 71 (1984); Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984); Pederson v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983); Janovich v. Herron, 91 Wn.2d 767, 592 P.2d 1096 (1979); Bocek v. Bayley, 81 Wn.2d 831, 505 P.2d 814 (1973); State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 492 P.2d 536 (1972); State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968); Danielson v. Faymonville, 72 Wn.2d 854, 435 P.2d 963 (1967); Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962); Morton v. McDonald, 41 Wn.2d 889, 252 P.2d 577 (1953); Roberts v. Millikin, 200 Wash. 60, 93 P.2d 393 (1939); State ex rel. Walter v. Houghton, 165 Wash. 220, 4 P.2d 1110 (1931); Gibson v. Campbell, 136 Wash. 467, 241 P. 21 (1925).

In one of the more recent cases, we noted that recall is the electoral process by which an elected officer is removed before expiration of the officer's term of office. Chandler, 103 Wn.2d at 270. In Washington the power to recall elective public officials is constitutionally based. Const, art. 1, §§ 33, 34 (amend. 8). Pursuant to this provision, the Legislature has adopted RCW 29.82 as the scheme for carrying out the recall power. Under this statute an officer's constituency can initiate recall proceedings by preparing charges which recite that the officer has committed an act or acts of malfeasance, misfeasance or has violated the oath of office. RCW 29.82.010. The 1984 amendments to RCW 29.82.010 define these terms in the following manner:

(1) "Misfeasance" or "malfeasance" in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;

(a) Additionally, "misfeasance" in office means the performance of a duty in an improper manner; and

(b) Additionally, "malfeasance" in office means the commission of an unlawful act;

(2) "Violation of the oath of office" means the wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law.

Laws of 1984, ch. 170, § 1, p. 821. In addition, that statute requires that charges must

state the act or acts complained of in concise language, give a detailed description including the approximate date, location, and nature of each act complained of, be signed by the person or persons making the charge, give their respective post office addresses, and be verified under oath that he or they believe the charge or charges to be true and have knowledge of the alleged facts upon which the stated grounds for recall are based.

RCW 29.82 and its amendments were recently analyzed in Chandler v. Otto, supra, and Cole v. Webster, supra, wherein this court held that the 1976 and 1984 amendments to RCW 29.82 clearly disclose an intent by the Legislature to limit the scope of the recall right and free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations. Chandler, at 274.

In Chandler and Cole, we decided not to follow other decisions of this court which advocated judicial restraint in reviewing recall charges, see McCormick v. Okanogan Cy., 90 Wn.2d 71, 75, 578 P.2d 1303 (1978), and returned to what we perceived was the intent of the framers of the recall provision: "to limit the scope of the recall right to recall for cause" as required by the state constitution. Chandler, at 271. The requirement of cause mandates that a recall charge be both legally and factually sufficient. As noted in Chandler, at 274:

Factually sufficient means the petition must comply with the specificity requirements of RCW 29.82.010. As noted in Herron [v. McClanahan, 28 Wn. App. 552, 625 P.2d 707 (1981)], at 560, "these statutory requirements ensure that both the public electorate and the challenged elective official will make informed decisions in the recall process." Factually sufficient indicates that although the charges may contain some conclusions, taken as a whole they do state sufficient facts to identify to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office.

Legally sufficient means that an elected official cannot be recalled for appropriately exercising the discretion granted him or her by law. To be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.

(Citations omitted.)

The rationale for requiring charges to be both legally and factually sufficient is clear. The requirement of factual sufficiency assures that charges, although adequate on their face, do not constitute grounds for recall unless supported by identifiable facts. The requirement of legal sufficiency protects an elected official from being subjected to the financial and personal burden of a recall election grounded on false or frivolous charges. See Chandler, at 272. See also Bocek v. Bayley, 81 Wn.2d 831, 839-40, 505 P.2d 814 (1973) (Utter, J., concurring).

Applying these rules to the instant case, it is at once clear that the petitions are insufficient. Charge 1 alleges a violation of the Act. In some instances a violation of the Act may constitute legally sufficient grounds for recall. Furthermore, the charge in the instant case conceivably could be sufficient to invoke sanctions under the Act itself. The charge, however, is insufficient to pass muster under the recall statute because it fails to meet the statutory requirement of a detailed description of the act complained of. RCW 29.82.010.

Charge 1 alleges that on June 26, 1984, the directors held a secret meeting at which they discussed and decided to vote negatively on an agenda item. The charge does not specify the particular agenda item discussed; it merely intimates that an agenda item was discussed. The general term "agenda item" fails to provide a detailed description of the nature of the act complained of. The charge does not identify to the electors and to the officials being recalled acts which, without justification, would constitute a prima facie showing of misfeasance, malfeasance or violation of the oath of office. The public cannot make an informed decision on whether to support the recall. Voters cannot determine whether they actually believe the act requires removal of the official from office. See Herron v. McClanahan, 28 Wn. App. 552, 559-60, 625 P.2d 707 (1981). The official is burdened with trying to defend against general allegations to which there cannot be a meaningful response. Such general charges subject officials to harassment not contemplated by Washington's constitutionally based recall right. See Cole v. Webster, 103 Wn.2d at 285. In addition, the general term "agenda item" fails to indicate that the persons submitting the charges "have knowledge of the facts upon which the stated grounds for recall are based, rather than simply a belief that the charges are true." Cole, at 288. Hence, we hold that the term "agenda item" fails properly to inform the electorate and the official of the specific act for which the official is being recalled. We therefore reverse the trial court and find charge 1 factually insufficient.

We have thus far determined that the facts articulated in charge 1 fail to identify to the electors and to the officials being recalled acts which would constitute a prima facie showing of misfeasance or malfeasance. Charge 2 alleges the same facts as charge 1 but contends that, irrespective of any violation of the Act, such conduct constituted misfeasance and malfeasance. The deletion of a violation of the Act is not enough to make the charge sufficient. The charge still fails to contain a detailed description of the act complained of. Hence, we affirm the trial court finding that charge 2 is insufficient.

We also believe, contrary to the trial court's finding, that charge 3 filed against Teaford is insufficient. Through its legislative amendments in 1976 and 1984, the Legislature mandated judicial scrutiny of recall petitions. Such scrutiny does not allow a court to question the truth of the charges but does assure that a recall charge is both legally and factually sufficient. Chandler, at 274. As noted above, to be factually sufficient a charge must state facts which constitute a prima facie showing of misfeasance, malfeasance, or violation of the oath of office. Chandler, at 274. Prima facie in this context means accepting the allegations as true; the charge on its face supports the conclusion that the officer committed misfeasance, malfeasance or violation of the oath of office. Pursuant to the legislative definitions of these terms, the charge must on its face show the official acted wrongfully, improperly, unlawfully or negligently in the performance of his duties. A prima facie showing of misfeasance, malfeasance or violation of the oath of office will assure that both the voters and officials can make intelligent decisions on the recall charge.

Charge 3 against Teaford is factually insufficient for several reasons. Although the charge identifies the acts taken, it fails sufficiently to specify why such acts constitute misfeasance, malfeasance or violation of the oath of office as defined in RCW 29.82.010. The mere contention that the acts were in derogation of some unknown board procedures and policies is not specific enough. Without providing the specific policies violated, the charge does not, on its face, support the conclusion that the director acted wrongfully, unlawfully or improperly as required by RCW 29.82.010. The failure to delineate the procedures and policies allegedly violated raises the possibility that the acts in question were discretionary acts. It is unknown whether the procedures and policies merely require that the Board's hiring decision be guided by knowledge, prudence and circumspection. If so, then such acts are discretionary and officials cannot be recalled for making a discretionary decision unless they act arbitrarily or unreasonably. Cole, at 284. There is no allegation that the Board acted arbitrarily or unreasonably. Furthermore, the vagueness inherent in charge 3 makes it impossible for the electorate to make an informed decision in the recall process. The official is likewise overly burdened in trying to respond to the charge. Hence, we hold that since charge 3 fails to specify the policies and procedures allegedly violated, it is factually insufficient.

Finally, we believe the remaining two charges are also insufficient. Charge 3 against Barr and Morasch and charge 4 against Barr are mere general allegations reflecting unspecific conduct of the directors. There is no allegation that the acts constituted misfeasance, malfeasance or violation of the oath of office. Hence, the trial judge was entirely correct in concluding that these two charges do not satisfy the criteria for which a recall petition may be filed. Hence, we affirm the trial court's finding that these two charges are insufficient.

In conclusion, we hold all of the charges propounded against Medical Lake School District Directors Harry Tea-ford, Merle Barr and Sharon Morasch are factually insufficient and cannot constitute grounds for recall.

Utter, Brachtenbach, Andersen, and Durham, JJ., concur.